TMI Blog2021 (6) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Sec. 153 and the extension therein contemplated would not be applicable. As such, in the case before us the de novo assessment as had been directed by the Pr. CIT vide his order passed u/s 263, dated 31.03.2021, without any choice, has to be framed by the A.O within a period of twelve months from the end of the financial year in which order u/s 263 was passed by the Pr. CIT. We find, that the legislature in all its wisdom had expressly vide Explanation 1 to Sec. 153 of the Act carved out certain circumstances wherein the period involved is to be excluded for computing the period of limitation. Although, we find, that as per clause (ii) of Explanation 1 to Sec. 153 of the Act, the period during which the assessment proceedings are stayed by an order or injunction of any court , the period therein involved is to be excluded for the purpose of computing the limitation for framing the assessment, reassessment and re-computation as envisaged in the said statutory provision, however, no such exclusion has been carved out by the legislature in all its wisdom in a case where the assessment proceedings are stayed by an order passed by the Tribunal. Accordingly, it is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sec. 263 of the Income-tax Act, 1961 (for short Act ), dated 31.03.2021. 2. The genesis of the controversy leading to the filing of the present application lies in the order passed by the Pr. CIT u/s 263 of the Act, dated 31.03.2021. Original assessment was framed by the A.O vide his order u/s 143(3), dated 29.12.2018, wherein he had accepted the returned income filed by the assessee company. After culmination of the assessment proceedings the Pr. CIT called for the assessment records of the assessee company. The Pr. CIT holding a conviction that the A.O by wrongly treating the assessee as an agent of the State Government of Maharashtra had wrongly allowed its claim for exemption of its receipts under Article 289(1) of the Constitution of India, thus, called upon it to explain as to why the assessment order passed under Sec. 143(3), dated 29.12.2018 may not be revised. In reply, the assessee on the basis of its multiple contentions tried to impress upon the Pr. CIT that the assessment order passed by the A.O u/s 143(3), dated 29.12.2018 could not be held to be erroneous within the meaning of Sec. 263 of the Act. Also the assumption of jurisdiction by the Pr. CIT u/s 263 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 held the assessment order passed by the A.O u/s 143(3), dated 29.12.2018 as erroneous in so far it was prejudicial to the interest of the revenue and set-aside the same with a direction for framing of a de novo assessment after giving an opportunity of being heard to the assessee. 3. Aggrieved, the assessee company had assailed the order passed by the Pr. CIT u/s 263 of the Act, dated 31.03.2021 before the Tribunal on 13.05.2021, which thereafter had been marked as ITA No. 795/Mum/2021 and is pending disposal as on date. 4. Before us, it was submitted by the ld. Authorized Representative (for short A.R ) for the assessee applicant, that as the assessee has a prima facie good case on merits and the balance of convenience lies in its favour, therefore, in all fairness, and in order to avoid multiplicity of litigation the A.O be restrained from passing the assessment order pursuant to the order passed by the Pr. CIT u/s 263, dated 31.03.2021. It was submitted by the ld. A.R, that the entire controversy involved in the present case hinges around the conviction of the Pr. CIT that the A.O had wrongly concurred with the assessee, and held, that as it was an agent of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand, and not otherwise. It was, thus, submitted by the ld. D.R. that as the present application filed by the assessee was devoid and bereft of any merit, therefore, the same was liable to be rejected. 6. We have heard the ld. authorized representatives for both the parties and perused the application filed by the assessee applicant before us. As observed by us hereinabove, it is the claim of the ld. A.R that as the assessee has a prima facie good case on merits and the balance of convenience lies in its favour, therefore, in all fairness, and in order to avoid multiplicity of litigation, the A.O be restrained for a period of 6 months from framing a de novo assessment pursuant to the directions given by the Pr. CIT vide his order passed u/s 263 of the Act, dated 31.03.2021. On the contrary, the ld. D.R had strongly objected to the aforesaid seeking of restraint by the assessee. 7. After giving a thoughtful consideration to the issue before us, we think it apt, to herein observe, that the exercise of powers by the Income-tax Appellate Tribunal have to strictly remain within the scope and gamut of those conferred upon it by the legislature in all its wisdom. Before adverting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the provisions of clause (21) or clause (22B) or clause (23A) or clause (23B) or sub-clause (iv) or sub-clause (v) or sub-clause (vi) or subclause (via) of clause (23C) of section 10, under clause (i) of the proviso to sub-section (3) of section 143 and ending with the date on which the copy of the order withdrawing the approval or rescinding the notification, as the case may be, under those clauses is received by the Assessing Officer; or (iv) the period commencing from the date on which the Assessing Officer directs the assessee to get his accounts audited under sub-section (2A) of section 142 and- (a) ending with the last date on which the assessee is required to furnish a report of such audit under that sub-section; or (b) where such direction is challenged before a court, ending with the date on which the order setting aside such direction is received by the Principal Commissioner or Commissioner; or (v) the period commencing from the date on which the Assessing Officer makes a reference to the Valuation Officer under sub-section (1) of section 142A and ending with the date on which the report of the Valuation Officer is received by the Assessing Officer; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved is to be excluded for the purpose of computing the limitation for framing the assessment, reassessment and re-computation as envisaged in the said statutory provision, however, no such exclusion has been carved out by the legislature in all its wisdom in a case where the assessment proceedings are stayed by an order passed by the Tribunal. Accordingly, it is in the backdrop of the aforesaid mandate of law that we shall herein deal with the request of the assessee for restraining the A.O from framing the de novo assessment in pursuance to the order passed by the Pr. CIT u/s 263, dated 31.03.2021. 8. Adverting to the claim of the assessee that it has a good case on merits, without expressing any opinion, we prima facie find substantial force in the same, for the reason, that the issue involved in the present appeal, viz. as to whether or not the assessee is an agent of the state government of Maharashtra, as claimed by the ld. A.R is squarely covered by the respective orders passed by the Tribunal in the assessee s own case, viz. (i) A.Y 2014-15, in ITA No. 2840/Mum/2019, dated 16.10.2019; and (ii) A.Y 2015-16 in ITA No. 1278/Mum/2020, dated 28.09.2000, wherein the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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